West Park Shopping Center, Inc. v. Masheter

• Decision Date: 11 May 1966
• Docket Number: No. 39646,39646
• Citation: 6 Ohio St.2d 142,35 O.O.2d 216,216 N.E.2d 761
• Parties: , 35 O.O.2d 216 WEST PARK SHOPPING CENTER, INC., Appellee, v. MASHETER, Director of Highways et al., Appellants.
• Court: Ohio Supreme Court

Page 142

6 Ohio St.2d 142

216 N.E.2d 761, 35 O.O.2d 216

WEST PARK SHOPPING CENTER, INC., Appellee, v. MASHETER, Director of Highways et al., Appellants.

No. 39646.

Supreme Court of Ohio.

May 11, 1966.

Syllabus by the Court

1. By reason of the doctrine of sovereign immunity, the state of Ohio cannot be sued without its consent.

2. An action to quiet title will not lie against the state of Ohio.

3. In an action against the Director of Highways to quiet the title to property in which the state of Ohio has an easement for roadside park purposes, the state of Ohio is the real party in interest and such action cannot be maintained without its consent.

Plaintiff, West Park Shopping Center, Inc., appellee herein, in its petition filed in the Court of Common Pleas of Franklin County, alleges its possession of a 3.53-acre parcel of real estate in Richland County, that the state of Ohio claims an interest in this land adverse to the plaintiff, that the claim of the state is a cloud upon the plaintiff's title; and prays that its title be quieted.

The state of Ohio and the Department of Highways, defendants and appellants herein, contending that the suit is one against the state of Ohio without its consent and over which the courts of this state have no jurisdiction, moved to quash service. That motion was overruled.

Thereafter, the pleadings and the evidence disclose that some years ago a permanent easement in the property was conveyed by deed of gift to the state of Ohio for roadside park purposes by the plaintiff's predecessor in title. The deed conveyed the easement with the proviso that if the use of the property for roadside park purposes was abandoned the transfer would be 'null and void' and revert to the grantor. The property was thereafter developed as a park, and substantial state funds were expended for this purpose.

As the years went by, the area around the park was developed commercially. The plaintiff owned a shopping plaza adjacent to the park. Desiring to use the park for some commercial purpose, it purchased the fee and initiated negotiations to bring about an abandonment by the state of the use for park purposes so as to cause a termination of the easement.

In the negotiations it was suggested that other more suitable property be chosen by the state, developed as a park by the plaintiff and deeded to the state in return for abandonment of the parcel in question.

No final agreement was ever consummated. Preliminary steps to the suggested end were taken by the plaintiff and by the Director of Highways. The director's acts consisted of making an entry in his journal, finding the parcel no longer necessary pursuant to Section 5511.07, Revised Code, and advertising this finding in Richland County.

The record shows protests received and letters in which the public in the Mansfield area indicated that this ground was of substantial value and should not be vacated until arrangements had been made to provide the people of the area with other suitable facilities in lieu of those to be abandoned.

Although other such facilities were not provided, the director, by entry dated January 11, 1963, but actually prepared and filed January 14, 1963, moments before he left office, purportedly vacated the 'Olson Honor Park' for the purpose of abandoning the same. The successor director on January 25, 1963, also by entry on his journal rescinded the order of vacation.

The trial court ordered that upon payment of $10,452 to the state by the plaintiff title would be quieted. The plaintiff appealed. The state by brief again raised the jurisdictional question. The Court of Appeals modified the trial court's order by removing the condition and, as modified, affirmed that order.

This court overruled the plaintiff's motion to dismiss the appeal as of right and allowed the motion to certify the record.

Carl B. Mellman, Columbus, for appellee.

William B. Saxbe, Atty. Gen., I. Charles Rhoads, Columbus, and Allan D. Dobnicker, Asst. Atty Gen., for appellants.

PAUL W. BROWN, Judge.

We are unable to find statutory authority for the negotiations which occurred between the parties. Nor is any such authority called to our attention by counsel. We need not pass upon the question of whether Section 5511.07, Revised Code, authorized the acts of the director which purported to abandon the park, although it should be noted that that section specifically deals with vacating portions of highways only. It should also be noted that the word, 'vacate,' and the word, 'abandon,' involve entirely different meanings.

'An abandonment is proved by evidence of an intention to abandon as well as of acts by which the intention is put into effect; there must be a relinquishment of possession with an intent to terminate the easement.' Dalton v. Johnson (Mo.), 320 S.W.2d 569; Miller v. Teer, 220 N.C. 605, 18 S.E.2d 173; Schenck v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 11 Ohio App. 164; Wheaton v. Fernenbaugh, 8 Ohio App. 182; 2 Casner, American Law of Property, Section 8.97; 2 Thompson on Real Property, Section 443; annotation, 25 A.L.R.2d 1265.

Discussion of the validity or invalidity of the acts of purported abandonment or the authority or lack of authority of the Director of Highways to dispose of property of the state is not important, since the lack of jurisdiction of the courts of the state of Ohio to quiet title against the state is clear.* Nor does the fact that the Director of Highways is the nominal defendant give a court jurisdiction not present in cases where the suit against the sovereign is without its consent. Nor will construing the action to be one for declaratory judgment correct the total defect.

For the broad general statement that an action to quiet title will not lie against the state see Sanders v. Saxton, 182 N.Y. 477, 72 N.E. 529, 1 L.R.A.N.S., 727, 108 Am.St.Rep. 826. See, also, 41 Corpus Juris 888; 59 C.J.S. Mortgages § 546; State of Louisiana ex. rel. Elliott v. Jumel, 107 U.S. 711, 2 S.Ct. 128, 27 L.Ed. 448; Christian v. Atlantic & North Carolina Rd. Co., 133 U.S. 233, 10 S.Ct. 260, 33 L.Ed. 589.

See Schwing, Trustee, v. Miles, 367 Ill. 436, 11 N.E.2d 944, extensively annotated in 113 A.L.R. 1511. Here, in a suit to foreclose a mortgage on land acquired by the state by gift for park purposes from one who obtained title through proceedings which were claimed to have been ineffectual to cut off the mortgage and in which the Director of the State Department of Public Works and Buildings has been made a party defendant, it was held that the action was within the constitutional inhibition of suits against the state.

In Pauchogue Land Corp. v. Long Island State Park Comm., 243 N.Y. 15, 152 N.E. 451, the court held that title of the state to land may not be tested in an action brought against the state or its officers without its consent, and that an action against state park commissioners is in reality an action against the state itself and cannot be maintained.

In Hjorth Royalty Co. v. Trustees of University, 30 Wyo. 309, 222 P. 9, the action sought to quiet title against the trustees of the University of Wyoming to federal lands granted to the state for the university in the Act of Admission of Wyoming. Plaintiff claimed possession and title to such lands as an oil-mining claim subject to the paramount title of the United States. A demurrer was sustained, the court holding that it had no jurisdiction over the defendant or the subject matter since the suit was in effect a suit against the state.

In Rothrock v. Loon Island, 96 N.H. 421, 78 A.2d 512, an action to quiet title to an island located in a lake which was one of the public waters of the state, it was held that the doctrine of sovereign immunity required a dismissal.

In Kern County Land Co. v. Lake County, 232 Or. 405, 375 P.2d 817, it was held that an action against a county to quiet title violates sovereign immunity and will not lie unless consented to by specific sta...